How Texas Governor Hopes to Undo Marriage Equality

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Texas GOP Governor Greg Abbott. | GOV.TX.GOV
Texas GOP Governor Greg Abbott. | GOV.TX.GOV

Conservatives eager to bring the marriage equality issue back to the US Supreme Court after President Donald Trump has the opportunity to appoint some right-leaning justices may have found a vehicle in an employee benefits dispute from Houston.

On January 20, Inauguration Day, the Texas Supreme Court announced it had “withdrawn” its September 2, 2016 order refusing review of a lower court ruling that implied the city of Houston is required to provide the same spousal health benefits to same-sex and different-sex spouses of municipal workers. The state’s intermediate court of appeals’ ruling pointed to the 2015 US Supreme Court marriage equality ruling in Obergefell v. Hodges in sending the case back to a trial court.

The Texas high court has now scheduled oral argument on the appeal for March 1.

The plaintiffs in the Houston case, taxpayers Jack Pidgeon and Larry Hicks, filed a motion for rehearing with the active support of Republican Governor Greg Abbott and GOP Attorney General Ken Paxton, both ardent marriage equality opponents eager to chip away at the marriage equality ruling or even get it reversed.

The Texas Supreme Court’s original order denying review last fall had been issued over a fervent dissent by Justice John Devine, who argued for a limited reading of Obergefell. Abbott and Paxton’s amicus brief in support of review channeled Devine’s arguments.

Trump’s nomination of a conservative to fill the seat left vacant when Justice Antonin Scalia died last February would not change the Supreme Court line-up on marriage equality. Obergefell was decided by a 5-4 vote, with Scalia dissenting. However, it is possible – even likely, if rumors of a possible retirement by Justice Anthony Kennedy at the end of the Court’s 2017-18 term are accurate – that Trump will get an opportunity to replace the Obergefell decision’s author with a more conservative justice in time for the Court’s 2018-19 term.

Regardless of how the Texas Supreme Court rules on this appeal, its interpretation of the scope of the Obergefell decision could set up a federal constitutional law question that could be appealed to the US Supreme Court. If the issue gets to that court, it is possible that the Obergefell dissenters, strengthened in number by the net addition of a new conservative appointee, could take the opportunity to narrow or even overrule the marriage equality decision.

The Houston dispute dates back to 2001, when Houston voters reacted to a City Council move to adopt same-sex partner benefits by approving a City Charter amendment that rejected city employee health benefits for “persons other than employees, their legal spouses, and dependent children.”

After the Supreme Court’s 2013 ruling on the Defense of Marriage Act, Houston Mayor Annise Parker, an out lesbian and longtime LGBTQ rights advocate, announced the extension of health benefits to same-sex spouses of city employees. Although same-sex couples could not then marry in Texas, they could go to other states to get married, and Parker and her city attorney concluded that under the DOMA ruling Houston’s city government was obligated to recognize city workers’ lawfully contracted same-sex marriages and provide them the same benefits accorded to other employees.

Pidgeon and Hicks filed suit in state court, contending that Parker’s action violated the Texas Constitution and statutes, as well as the City Charter amendment. A trial judge issued a temporary injunction against the benefits extension while the case was pending. The city appealed that ruling to a state appeals court, which sat on the issue as marriage equality litigation exploded across the nation. When Texas began issuing marriage licenses in the wake of the Obergefell ruling in 2015, that court, the 14th District Court of Appeals, finally reversed the temporary injunction and sent the case back to the trial court to consider the issue in light of the US Supreme Court’s action.

The appeals court, then, did not rule on the merits and left the question of what impact Obergefell had on city employee benefits policy a matter of some dispute.

Pidgeon and Hicks petitioned the Texas Supreme Court to review the court of appeals’ lifting of the injunction, but the high court initially denied them last September, at which point Justice Devine issued his dissent. Devine argued the appeals court’s majority incorrectly “assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.”

From his perspective, however, “Marriage is a fundamental right. Spousal benefits are not. Thus, the two issues are distinct, with sharply contrasting standards for review. Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”

Devine was mistaken, however, regarding what the appeals court decided. That court did not find that same-sex spouses of Houston employees are entitled to health benefits from the city, but instead ruled that because of “substantial change in the law” since the temporary injunction was issued, the issue should be litigated “consistent with” the Obergefell ruling. That left open the chance the trial court would still rule in favor of Pidgeon and Hicks.

In any event, Devine’s argument rests on a very narrow reading of Obergefell. He interprets the Supreme Court’s decision to be sharply focused on the right of same-sex couples to marry, based on its conclusion that the right to marry is a “fundamental right.” The Supreme Court never explicitly said that the US Constitution requires state and local governments to treat all marriages the same, regardless whether they are same-sex or different-sex marriages, he noted.

And, Devine argued, public employees do not have a fundamental constitutional right to receive health insurance benefits from their employer. He contended that the state could decide who gets benefits based on its own policy considerations, which the courts should uphold if they satisfy the relatively undemanding judicial standard of “rationality” applied where a fundamental right is not at stake. On that point, he argued, the state’s interest in procreation by married different-sex couples could justify extending benefits to them but not to same-sex couples.

Justice Kennedy’s opinion in Obergefell, however, specifically listed health insurance as one of the many benefits associated with marriage that contributed to the conclusion that marriage is a fundamental right because of its importance to the welfare of a couple and their children. And Kennedy did not consider the “procreation” argument persuasive in justifying the denial of marriage rights to same-sex couples.

Still, Devine is correct that Supreme Court did not say anywhere in its opinion that states are constitutionally required to treat same-sex and different-sex couples exactly the same in every respect, ignoring any factual distinctions between them. His argument, though strained, is not totally implausible, especially if considered by a conservative panel of judges.

Timing is everything, especially if the aim of Texas conservatives and their anti-LGBTQ allies around the country is to get the issue to the Supreme Court after Trump has made two appointments. Once the Texas Supreme Court hears oral argument on March 1, it can take as long as it likes to issue a ruling. That court could choose to be strategic about holding up a decision until it looks likely that any appeal to the US Supreme Court appeal would be considered after its 2017-18 term ends in June 2018.

If the Texas Supreme Court affirms the state court of appeals, it is highly likely that Pidgeon and Hicks, abetted by Abbott and Paxton, will seek US Supreme Court review. If the Texas Supreme Court reverses, the City of Houston will have to decide whether to seek Supreme Court review, or whether to adopt a wait-and-see attitude while the trial court proceeds to a final ruling on the case’s merits. And the trial court could well decide, upon sober reflection, that Obergefell compels a ruling against Pidgeon and Hicks, which would put the taxpayer plaintiffs back in the driver’s seat regarding any decision to appeal to the Supreme Court.

If a second Trump appointee were confirmed while all of this was playing out, the case would be heard by a bench with a majority of conservative justices appointed by Republican presidents – one by George H.W. Bush (Clarence Thomas), two by George W. Bush (Chief Justice John Roberts and Samuel Alito), and two by Trump. The president's appointees would be joining three Republican colleagues who filed or signed dissents in the Windsor and Obergefell cases.

If a majority of the newly constituted Supreme Court is eager to revisit Obergefell, they could grant review on the question whether Obergefell was correctly decided.

Much of this is conjecture, of course. Devine was a lone voice dissenting from the September 2 order to deny review in this case. But that order was issued at a time when pollsters were predicting that Hillary Clinton would be elected and, consequently, filling the Scalia vacancy and any others that occurred through 2020.

The political calculus changed dramatically when Trump was elected. Even though he said he accepts marriage equality as a “settled issue,” his announced intention to appoint justices in the image of Scalia and to seek reversal of Roe v. Wade, the court’s seminal abortion decision from 1973, suggests that his nominees would likely agree with the Obergefell dissenters that the marriage equality ruling was illegitimate. (In his dissent, Roberts wrote it had “nothing to do with the Constituti­on.”)

After the election, many LGBT rights organizations issued statements to reassure people that marriage equality would not immediately disappear after Trump took office, which remains true. Any threat to that status quo is at least two years off. But in those reassurances – and in an earlier analysis where I argued the unlikelihood of any reversal – there were caveats that in the long run it was possible that Trump’s Supreme Court appointments and new appeals headed to the high court could come together to endanger marriage equality. This new development in the Houston benefits case and the enthusiasm Texas’ top two Republican officials have for the issue point to one way that could happen.

Updated 5:17 pm, July 20, 2018
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Reader feedback

Michael says:
Let them deny the benefits of a same sex spouse and then there can be a lawsuit for discrimination based on gender.
Jan. 26, 2017, 4:14 pm
Neil Aitchison says:
Marriage is far more than just a wedding ceremony and calling someone "husband", "wife" or "partner" and it is also far more than just "two people being in love" (or more likely in today's way of thinking, a lot of marriages are more built on lust rather than love and so they are doomed to fail even before they start). For same sex marriage advocates to say that “You couldn't use term husbands and wife in same-sex marriage, but otherwise it wouldn't be any different to heterosexual marriage” is an incredibly shallow and meaningless view of marriage. Real marriage is a family-based institution for the nurture of children through to the next generation unlike same sex marriage which is a sex-based concept never tried before in the history of human existence. The latter is for the self-gratification of the individual (ie. to make them feel good) and in a political sense, same sex marriage is solely trying to make homosexuality look acceptable - in other words, there is nothing about same sex marriage that compares to real marriage. Real marriage is a millennia-old institution for procreation and male-female marriage is a proven pillar of successful civilisations since the dawn of time. Same sex couples simply don't have the biology to do real marriage and the only way that they can make marriage seem plausible to them is to steal the word "marriage" and redefine it to suit their purposes. Even their idea of having a family is to use artificial reproduction and then deprive a child of a mother or a father. Such a confected lifestyle turns children into mere luxury accessories for selfish homosexual parents.
Jan. 27, 2017, 7:36 am
Neil Aitchison says:
Using judicial activism to try and force people to accept homosexuality won't work - you don't change people's "will" by ordering them to do so. Homosexual marriage is the tail of the 60's sexual revolution of free love (more accurately, "free lust") which dismissed marriage as prohibitive to freedom to have sex with anybody and anyone at anytime - then along came the pill and legal abortion which took away the consequences. What has replaced traditional marriage - between one man and one woman for life - are the fake substitutes and token "marriages" based on convenience and self-gratification. The great damage is plain to see in a myriad of ways, especially with children (....the innocent, unborn children who are aborted get the worst treatment of all - they die). The history of the institution of marriage is quite clear: it was designed to unite a male and a female. I'm waiting to see how the definition and function of marriage has supposedly "changed" even though promiscuity and decadency has become acceptable and poisoned nearly every facet of society. Our children are now living in this environment with an aggressively targeted campaign in schools designed to groom them into as extreme perverse sexualisation as possible from a very young age with no awareness of true marriage or it's benefits. This means that when they become adults, they will have no desire to marry or even be aware of what true marriage means. Marriage is therefore constantly being undermined leading to frivolous commitments, lack of role-model marriages in media, music or the entertainment industry (which is why most celebrities back SSM because their own multiple marriages have all failed and they can get more money out of backing the latest trend even if it ruins the marriage bedrock of society) and higher levels of divorce (mainly due to the "no-fault" divorce laws that also contributed to the trashing of marriage over the past few decades). Same sex marriage only now seems plausible because the true purpose of marriage has eroded so much that it doesn't matter what you do, you can redefine any sex act to b called marriage to try and make it "acceptable". But in the history of mankind, homosexual marriage (and now the slippery slop of "gender-diverse marriage" being added to the list of marriage options - with more on the way as time passes) has never been deemed acceptable. The reason for this is simple: SSM and gender-diverse marriages (plus any other marriage options) are "sex-based" instead of "family-based". All this pulling down of marriage makes marriage look worthless, when in fact, it is not the institution of marriage that is at fault, but rather the way it is being used - people who divorce are simply not honouring their marriage vows. Plus, technology has advanced to manipulate procreation....thus, homosexual "marriage" now seems viable only because the awareness of a strong family-based marriage bond as a building block of society is almost lost completely - we are seeing the final nail in the coffin for meaningful marriage. If we make this final step of decadent marriage redefinition, then marriage becomes a total worthless concept. It will be weeded out of our society. Homosexual marriage is against biology and the biological design of the human body and is unable to perform the purpose of marriage. Homosexuality is based solely on desire.
Jan. 27, 2017, 9:05 pm
Jess Mee says:
What legally sustainable distinction can you make between a same-sex couple and an opposite-sex couple incapable of procreating which justifies offering benefits to one but not the other? Spousal benefits may not be a right, but whatever benefits an employer offers to the spouses of married employees have to be offered equally, to all or none. Employers don't get to decide which marriages of their employees are valid.
Jan. 28, 2017, 5:30 pm
Jess Mee says:
Everything you say could also be said of using "judicial activism" to "force" whites to accept blacks as their legal and cultural equals.
Jan. 28, 2017, 5:32 pm
Jess Mee says:
Spousal benefits may not be a right, but whatever benefits an employer offers to the spouses of married employees have to be offered equally, to all or none. Employers don't get to decide which marriages of their employees are valid.
Jan. 28, 2017, 5:36 pm
Neil Aitchison says:
Blacks, women's voting rights, sexism and other non-choice circumstances are not the same as homosexual marriage because marriage is a choice and not a right - no government can legislate who you love and who you should marry.. All the legitimate rights that have been successfully achieved were not done so by redefining words to create an allusion of success. For example, If Blacks tried to achieve their right to freedom by redefining the word "freedom" to mean "white men are free but black men are still slaves to white men", then you could say that everyone has "freedom" but in practice, nothing has changed. Likewise, if women voting rights were achieved by redefining the word "voter" to mean "men can vote but women cannot vote" then everyone becomes "voters", but in practice, nothing has changed. So if homosexuals think that they are achieving a "right" by redefining the word "marriage" to include them, then even though they are called "married", in practice nothing has changed because they are not doing the heterosexual marriage thing - they are still continuing to do their own homosexual thing - nothing has changed and the word "marriage" is trashed in the process. Nothing is achieved for making homosexuality accelptable to society by sabotaging the word "marriage" and changing it into whatever suits their purpose. Just how stupid do you think we all are by pushing such an emotive propaganda stunt on to us all like "homosexual rights"?....It's a choice and it always will be. The homosexual advocates think that redefining the word marriage suddenly makes it a right for homosexuals to love each other and somehow be considered the same as heterosexuals, but all the "love, acceptability, equality and tolerance" that homosexuals want to achieve can be done without marriage involved and, in fact, the sabotage of marriage to redefine it a "sex-based" institution turns it into a completely different institution than what it has been for thousands of years (ie. a family-based institution). This sabotage of marriage is turning people away from homosexual ideologies and shows how manipulative and dishonest the homosexual activists are..
Jan. 28, 2017, 10:55 pm
Bill Guy says:
One could make the same argument about ‘white privilege’, and how Jim Crow laws benefit only Caucasians and equality would ‘degrade’ ‘Jim Crow’ if the term were still used and equality was the norm. Either way, regardless of race or sexual orientation everyone under the law and the Constitution should have the liberty to go about their lives without resistance from state sanctioned discrimination. It is no different in marriage, whether same sex or opposite both marriages are bonded by love, and that is all that matters, not lifestyles or what two people do in the privacy of their bedrooms or whether they chose to procreate or not. As it has been said many times ‘People that are accustomed to privilege always view equality, and the advancement of equal rights as a threat.’ The same people view equality under the law as a ‘sabotage’ to the institutions they deem are validations to their identity, the apparent and time worn reaction coming in the form of ‘backlash’, sometimes through violence, and often through the use of the legal system(s), either way, this backlash is the side effect of the drug called social justice. Backlash against those fighting for equality has always been a part of the American story, and just like non-whites and women the LGBT community will have to keep pushing because the ‘lessons, and the medicine is too valuable.’
Feb. 1, 2017, 1:24 pm
Bill Guy says:
Homosexual marriage has never been ‘deemed’ acceptable as you say for one reason- bigotry, and heterosexual chauvinism. You do know that sex between people of the same gender is as prescient as civilization. People of the same sex often have a lover and a wife, propagation of the species was understood, that is what the institution of marriage is about, and sir, you should not assume that marriage is based on procreation; there are childless couples by choice, and, conversely, do not assume all gay relationships are based solely on desire. When the majority of heterosexual men-and women- meet a prospective partner there is physical attraction or ‘desire’ unless, it is an arranged marriage, which, in this part of the world are far and few between. That said, no one is ‘using’ the judicial system to force people to accept them. What the LGBT community is working on changing is your attitude and blatant disrespect for the law and the Constitution which, like the bible, you selectively parrot and try to administer and enforce the parts that suit your personal desires, values and agenda, an agenda that includes oppression of those you often despise and would prefer to rule by fiat. The LGBT community is seeking the same rights and privileges that everyone else benefits from because in America we seek to uphold the Constitution to protect, and secure liberty and justice for all, America is not a monarchy, and the Constitution was not written to fit the pursuits and rights of a certain group of individuals with an authoritarian bent to favor liberty and justice for some. Not a few of us understand even in this day and age that equality is still a difficult concept to grasp if one is a white heterosexual male, and I assume evangelical accustomed to privilege, but the country and the world is changing and Governor Abbot or President Trump nor this slow motion right wing coup composed reactionaries of the right wing lunatic fringe of the GOP that is attempting to take over governance and possible the country , may delay, but will not stop the forward progress that is a part of the American story.
Feb. 1, 2017, 2:17 pm
Bill Guy says:
There are plenty of same sex couples in long happy loving successful marriages, many now with grand children, step out of your bubble and get out and meet some of them, families are built on love, not self-gratification. I think you could comprehend this if you did not obsess so much about genitalia and stereotypes, the kind of stereotypes that lead to hate and bigotry. Sentient beings are capable of building relations beyond biology like the seasonal cycles in nature, love is what binds us regardless of gender or sexual orientation and that is what makes the difference, because love is the strongest force in the universe, a force unfortunately that eludes some people, or they are afflicted with 'conditional' love, which is not love, but the step brother of hate, ready to turn away when they are not served with self-gratification
Feb. 1, 2017, 2:29 pm
Auxillary Battery says:
This is not morally good
April 22, 2017, 4:04 am
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May 31, 2017, 11 pm
Jony25 says:
Excellent post.
June 9, 2017, 1:29 pm
Addison35 says:
Texas Governor wants to undo marriage equality & how they can do this is the main topic of this article. Katy is more beautiful city & the maid service company want to give time to the people to enjoy the holiday with a special person. So, they open a new company named Maid Service and Carpet Cleaning Katy which clean your house at the absence of you trustily!!
June 14, 2017, 9:42 am

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